Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20241212 DOCKET: COA-24-CR-0234

Judges: Rouleau, George and Gomery JJ.A.

BETWEEN

His Majesty the King Respondent

and

S.J. Appellant

Counsel: S.J., acting in person Kayvan Vakili, appearing as amicus curiae Jacob Millns, for the respondent

Heard: December 3, 2024

On appeal from the convictions entered on August 25, 2023 and the sentence imposed on January 30, 2024 by Justice Christine Pirraglia of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was found guilty of forcible confinement, failure to provide the necessaries of life, assault causing bodily harm, and assault with a weapon. He received a sentence of two years less a day. He appeals his convictions and sentence.

[2] All of the offences were in relation to a single incident involving the appellant’s teenage daughter. The appellant’s wife was tried alongside the appellant and convicted of failing to provide the necessaries based on her involvement in this same incident.

[3] On the conviction appeal, the appellant argues that the trial judge placed undue weight on his daughter’s recorded police statement and erred in dismissing his application brought under s. 11(b) of the Canadian Charter of Rights and Freedoms.

[4] The daughter’s police statement was admitted for the truth of its contents pursuant to the principled exception to the hearsay rule after she failed to adopt it at trial. In her viva voce evidence in chief, the appellant’s daughter minimized her allegations against the appellant. She claimed that she had exaggerated the allegations in her statement to the police because she was worried about having to return home and because she wanted her father to get counseling.

[5] Before this court, the appellant also tenders voluminous proposed fresh evidence, including correspondence from his daughter, in which she maintains that she lied in her police statement.

[6] We would not admit the proposed fresh evidence. Quite apart from the fact that this evidence is not in proper form, it is, in essence, irrelevant or would not have affected the result. The trial judge was already aware of the daughter’s attempt to distance herself from her police statement. Nothing contained in the proposed fresh evidence would undermine the basis for the trial judge having relied on the daughter’s police statement over her viva voce recantation evidence.

[7] This was a credibility case. The trial judge gave little weight to the daughter’s recantation, finding that it was obvious that she was trying to exonerate her parents and wished to resume contact with them. In contrast, the trial judge found that the daughter’s police statement was consistent with and corroborated by the other evidence presented at trial, including evidence of injuries the daughter had suffered. The trial judge’s findings in that regard are entitled to deference and we find no basis to interfere.

[8] We also see no error in the trial judge’s ruling on the appellant’s 11(b) application. While there had been a delay of 18 months and 4 days between the laying of the charges and the end of the trial, the trial judge determined that 4 different periods within that time were attributable to defence delay or exceptional circumstances. The trial judge’s findings to that effect are well supported, and any of these periods would have been sufficient on its own to bring the overall delay below the 18-month ceiling.

[9] With respect to the sentence appeal, the appellant has not directed us to any error in the trial judge’s reasons. The sentence was clearly a lenient one given the degrading nature and seriousness of the offences. The Crown had asked for a sentence of 5 years, while the defence submitted that a sentence of 18 months was appropriate. There is no basis for finding the sentence of two years less a day unfit.

[10] Finally, the Crown has asked this court to amend the information. Count 4 of the information cites s. 215(3) of the Criminal Code, R.S.C. 1985, c. C-46. This is the applicable punishment for both the offences under ss. 215(2)(a)(i) and 215(2)(a)(ii). The information then particularizes the charge by including the words “who was in destitute and necessitous circumstances”, referring to the complainant. In this way, the information specifically refers to an offence under s. 215(2)(a)(i). However, the trial judge convicted the appellant of an offence contrary to s. 215(2)(a)(ii). An amendment to the information is therefore required to address the resulting incongruity between the conviction and the wording of the information.

[11] We agree with the Crown that the information ought to be amended by removing the words “who was in destitute and necessitous circumstances.” Pursuant to s. 683(1)(g) of the Criminal Code, this court has the power to amend an information to conform with the evidence at trial if doing so would not prejudice the appellant: see R. v. Wilson, 2022 ONCA 857, 165 O.R. (3d) 286, at paras. 31-32. Amending the information in this case would not prejudice the appellant.

[12] As submitted by the Crown, the two offences under s. 215(2)(a) are similar offences with several significant overlapping elements. In the present case, the only live issue at trial was the credibility and reliability of the complainant, the appellant’s daughter. The trial judge’s findings of fact amply support a conviction for either offence. The appellant understood the case he had to meet, namely, that he failed to provide necessaries to his daughter by having her gagged, bound and without access to food or a bathroom. This would not have changed had the amendment been made before trial. As a result, we have concluded that the amendment sought by the Crown, removing the words “who was in destitute and necessitous circumstances”, can and should be made.

[13] For these reasons, the appeal is dismissed and the information is to be amended by striking the words “who was in destitute and necessitous circumstances.”

“Paul Rouleau J.A.”

“J. George J.A.”

“S. Gomery J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.